CIV/APN/107/83
CIV/APN/108/83

IN THE
HIGH COURT OF LESOTHO

In the
Applications of :

MASEBITSA
MOLISE Applicant

v

COMMISSIONER
OF POLICE ) OFFICER COMMANDING )

MINISTER
IN CHARGE OF POLICE) Respondents

SOLICITOR
GENERAL )

and
MAMOKHELE MOHATLA Applicant

v

COMMISSIONER
OF POLICE ) OFFICER COMMANDING ) Respondents

MINISTER
IN CHARGE OF POLICE) SOLICITOR GENERAL )

RULING ON
COSTS

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 28th day of
June 1983

These
were two separate applications in the nature of habeas corpus,
wherein applicants, the close relatives of two persons detained
under
the Internal Security(General) Act 1982 sought rules nisi calling
upon the respondents to produce the bodies of the detaines
and
justify their detention in terms of the Act.

By
agreement of both counsel one Judgment will be delivered since the
facts are the same.

The
urgent applications were filed at the. Registrar's office at about 4
p.m. of 31st May 1983, and the rules nisi were

2

granted
at 10 a.m. on 1st June 1983. The return date was fixed for Monday 6th
June 1983 for both applications.

On that
date two affidavits were on file from a police officer who averred
that he had acquainted himself with the papers but was
unable to
produce the bodies of the detainees because they had been released on
the 1st June 1983.

The
questions of costs was contested.

Costs are
of course within the discretion of the Court but the normal practice
is that costs follow the event so that if the rule
was discharged on
the application of the party that urgently moved the Court, costs
ought to be awarded to respondents. The normal
practice however is
not rigid and we have in this court from time to time especially in
cases of alleged unlawful detentions, reversed
the rule of practice
or refused to make any order as to costs. Each case depended on its
own facts but on the 6th June 1983 the
facts had not been verified by
Mr. Gwentshe or Miss Fanana. The matter was adjourned for them to
investigate what happened and
then to address me.

It is now
common cause that :

1. The
   service of the papers was effected on the Solicitor General's office
   at about 4 p.m. of the 1st June. The service of the papers
   on the
   Solicitor General was in accordance with normal practice where the
   main respondent is a Government department in this
   case the
   Commissioner of Police.

   
   

2. The
   date of service on the other respondents was not established with
   certainty. If there was service at all it was after 4 p.m.
   on 1st
   June or on the following day.

   
   

3. One
   of the Crown Counsel in the Solicitor General's office however
   apprised the respondents of the rules nisi. Whether this occurred

   soon after 4 p.m. of 1st June or on the following day is not clear,
   but Miss Fanana says she was told that the two detainees
   have in
   fact been released on 1st June before the Order of the Court came to
   their notice.

   
   

4. The
   officer did not, in his affidavit, specify the time of the release
   but one of the detainees in a replying affidavit averred
   it was 2.59
   p.m. on 1st June i.e. before the service of the papers on the
   Solicitor General or the respondent Commissioner of
   Police.

   
   

3

Mr.
Gwentshe submitted on behalf of the applicants that he was entitled
to costs in both applications because :

1. The
   respondents must be presumed to have got wind of the proposed
   applications when the papers were filed in the afternoon of
   the 31st
   Hay 1983.

   
   

2. The
   officer having not referred to the lawfulness of the detention the
   Court ought to presume thatthe respondents had not complied
   with the
   relevant provisions of the Act.

   
   

3. That
   the applicants have expended funds on the launching of the
   applications, which were necessary to assert the right of their

   detained relatives, and to test the validity of the detention by the
   respondents.

   
   

4. That
   the costs were not incurred by the detainees themselves so that they
   cannot, if they decide to sue for damages for wrongful
   detention and
   succeed, recover items relating to costs incurred by a third party.

   
   

Miss
Fanana submitted that there can be no presumption of unlawfulness on
the principle that prima facie a public official acts
lawfully until
the contrary is proved.

This is
the first case before me on detentions under the new Act. It is
clear, when compared with the Internal Security (General)
Act 1967,
that quite apart from the initial periods of detention allowed
(reduced from 60 days to 14 days) the detainee is entitled,
in
addition to his common law rights, to distinct rights expressly
provided for under the terms of the new Act. The legality of
the
detention today must therefore be gauged with reference to the
intention of the legislature which was clearly aimed at curing
the
abuse which sometimes occurred under the former Act of which we have
had some examples in Judgments delivered on the subject
in the course
of the last three or four years of which only a few are yet reported.

The Court
in this instance has affidavits from two applicants who were anxious
about their relatives, but their allegations of non
compliance with
the provisions of the Act have been advanced, not on personal
knowledge, but on general complaints relating to
visits by a doctor,
a priest, personal hardship, lack of access refusal of food,
vegetables, and bibles etc. It is true that they
allege
contraventions of a number

4

of
sections of the Act but these are by and large hearsay. The only
point that could have clinched the matter in applicant's favour
on
costs was whether the detainee had to be released after a certain
specified period. Mr. Gwentshe says they have been detained
for 57
days, but in fact if was 48 days from 13th April 1983 to 1st June. I
see no express limit of 42 days maximum in any section
of the Act but
the submission was that the days counted arose by implication of
other sections of the Act notably ss 32 to 35.
It was pointed out
that advisors had not been appointed until 19th April 1983 (vide LN
35 of 1983 Gazette No/20) and in the absence
of a further temporary
detention in terms of s.33 the term has expired so the applications
were justified on this ground. I am
not able with respect to follow
that argument. In this application it is not possible to get into the
merits more especially because
one of the detainees who filed an
affidavit in support of the applicant relative after his release
referred to none of the complaints
made by Mr. Gwentshe. He simply
averred that he "read" the affidavit and confirms he was
released at a time, when it
was common cause, the papers had not been
served even on the Solicitor General so he did not enlighten me any
more than the detaining
officer, who averred more or less the same
except that he used the words "acquainted".

I agree
that in response to Orders of this nature the detaining authority
should make an averment denying non compliance with the
provisions of
the Act. If not they might find difficulty in an ensuing action for
damages for wrongful imprisonment. I do not think
it will be
justifiable on the papers as they stand to jump into a conclusion
that the detention was illegal since this might, according
to Mr.
Gwentshe, come before the High Court by way of action. He has created
sufficient displeasure however to order each party
to bear his or her
costs.

Lastly a
word of warning to the detaining authorities. They must acquaint
themselves thoroughly with this new Act. It has got safeguards
to the
detainee that were not available under the former Act and trifling
with those safeguards might end up in their having to
pay substantial
damages. A copy of this Judgment is to be sent to Commissioner of
Police who should pass it on to his subordinates.

CHIEF
JUSTICE

28th
June, 1983

For
Applicants : Mr. Gwentshe

For
Respondents: Miss Fanana